Mark Baumohl considers Turner v LB of Ealing  EWHC 1431 (QB) a case concerning a so called “second successor” which, provided that a local authority is mindful of its ongoing duties and is prepared to provide a clear road map for proper consideration of those duties, further underlines the difficulties defendants may have defeating possession claims on health or length of residency grounds by raising Article 8 of the European Convention of Human Rights.
Mrs Turner occupied property previously let, first to her father, and, following his death in 2005, then to her mother as successor until her death in 2012. Mrs Turner had lived in the property in the1960s and 70s; had returned and lived in the property from some time between 2007 and 2009 and had lived there continuously thereafter. She was not entitled to succeed to the tenancy of the property but continued to occupy it together with her son. By this time Mrs Turner, who was 73, was suffering from various health problems. She was registered disabled; she was blind, wore a pacemaker and suffered from depression and insomnia. She also suffered from various physical conditions including osteoporosis and hypertension. There was concern expressed by medical practitioners that a move might exacerbate some of her medical conditions although the medical opinion did not go so far as to expressly rule out a move on health grounds.
The local authority served a notice to quit. Mrs Turner and her son did not leave but completed a housing application. The Local Authority then proceeded to carry out an assessment of Mrs Turner and her son. They eventually concluded that she and her son would be made 2 offers of alternative 2-bedroom, ground floor accommodation. She would not be offered a tenancy of the current property however noting that the property was a 3-bedroom property that could accommodate upon to 6 people. Possession proceedings were subsequently commenced.
In the proceedings, the authority agreed that they would not seek to enforce any order for possession until up to two offers of alternative accommodation had been made, that there would be no transition to temporary accommodation in any intervening period, and that further assessments would be conducted by adult social services at or before the point of any offer of alternative accommodation. They also agreed that any offers would be consistent with occupational therapy reports before the court.
At fist instance the Recorder considered that the threshold for an article 8 defence was met and the defence was seriously arguable. However, she went on to consider the competing interests of the local authority and Mrs Turner taking into account her health need. She concluded that a possession order was proportionate. She applied the cases of Thurrock v West  EWCA Civ 1435 and Holley v LB of Hillingdon  EWCA Civ 1052, holding that the length of occupation and the various medical conditions did not displace the sound reasons of the local authority for seeking possession and commenting also that there well may be good reason for moving Mrs Turner to a ground floor flat. The recorder made a possession order which was expressly subject to recitals recording the agreement of the local authority not to enforce the order until the conditions to which it had agreed had been met.
On appeal Mrs Turner sought to argue (1) that the judge had not had sufficient or due regard to the medical evidence, that she had misapplied West and Holley and failed to take into account the multitude of difficulties faced by Mrs Turner; and (2) that errors in procedure at the time of earlier recommendations for rehousing rendered the decisions defective on public law grounds.
Held: Dismissing the appeal, (1) Mrs Justice Whipple noted the careful assessment by the Recorder of the medical evidence and the case law and found no error in her approach. She agreed that Thurrock and Holley were authority for the proposition that medical issues aggregated with long length of residence will generally provide an insufficient basis on which to defeat a claim for possession in second succession cases. The cases remained relevant to the balancing exercise carried out when assessing the proportionality of an eviction even if the case passed the threshold “seriously arguable” test for raising an Article 8 defence. The judge also emphasised that the assessment of how best to use its housing stock was a question for a local authority and that they were entitled to conclude that the use of the three-bedroom, end-of-terrace house with a garden could and should be allocated to others with greater need for that type of housing. Subsequent further medical conditions which had been diagnosed since the hearing at first instance did not alter these conclusions. (2) By the time of proceedings any earlier errors in procedure had been rectified when the local authority had considered the matter afresh.
The case also emphasises that the recovery of possession and the balancing exercise under Article 8 remains to some limited extent an ongoing process. Whilst Mrs Turner would have to show exceptional circumstances to succeed in any further attempt to relitigate at enforcement stage, the door the court was not entirely closed should her circumstances change dramatically for the worse at the time the local authority sought to enforce the possession order. The Local Authority also reassured the court that it would keep Mrs Turner’s accommodation requirements under review, something which the recital in the possession order evidently contemplated in any event.